Tag Archives: imperial presidency

Obama, Gun Control, and the Limits to Executive Action

President Obama is expected to formally announce today that he will pursue executive action design to expand background checks on some guns purchases. Obama’s decision has been described by media outlets as a way of sidestepping a Congress that has opposed enacting more stringent gun control legislation. Predictably, the President’s decision to act “unilaterally” has provoked the ire of Republicans, particularly those running for president, who are unanimous in condemning Obama’s decision as an excessive exercise of presidential power. In a not uncharacteristic assessment, New Jersey Governor Chris Christie complained on Fox News Sunday that Obama “is a petulant child… because quite frankly, the American people have rejected his agenda by turning both the House and the Senate over to the Republicans, and going from 21 governors when he came into office, the 31 Republican governors now, now this president wants to act as if he is a king, as if he is a dictator.”

But the reality is that executive actions like these are an indication of presidential weakness – not dictatorial power. The fact is that one of the great frustrations of Obama’s presidency – a frustration he has expressed on more than one occasion – has been his inability to get Congress to pass more stringent gun control legislation. In response, Obama has decided to move ahead on his own, in this instance by taking executive action to broaden the definition of what it means to be a gun seller. Under existing law, those purchasing guns from licensed gun dealers must undergo a background check. Those acquiring guns privately, in contrast, do not. By broadening the definition of who is a “gun dealer”, then, Obama’s executive action will in theory expand the number of background checks.

However, while it is true that Obama is, in effect, “making law” unilaterally, the substantive impact of his actions on gun violence is likely to be small, something he concedes. Indeed, in the run up to his announcement, gun sales have soared to levels not seen in two decades. The broader point, however, is that taking executive action, as opposed to legislating, is not a very effective way to make substantive, lasting policy change.  This is a point that political pundits, and even some political scientists, frequently overlook. There are several reasons for this. To begin, executive actions have much more limited scope than legislation – presidents can’t use them to overturn existing law. Nor can they be used on actions that require spending money without appropriations by Congress. In the case of background checks, Obama can order executive agencies to redouble their efforts to expand background checks, but he can’t unilaterally appropriate more money to implement his order.

The bigger problem when it when it comes to making law via executive action, however, is that the outcome is often short-lived, a point Donald Trump drove home in his interview with John Dickerson on Face the Nation on Sunday. When asked about Obama’s proposed action, Trump replied, “Well, I will say this. There’s lot of precedent, based on what he’s doing. Now, some have been — his executive order on the border, amazingly, the courts actually took that back a step and did something that was very surprising, which is, they did the right thing, so that maybe that one — but I would be rescinding a lot of executive orders that he’s done (italics added).” Trump’s threat to rescind Obama’s executive action is not to be taken lightly. In forthcoming research Jesse Gubb and I have conducted, we have found that of the roughly 300 most substantively important executive orders (EO’s) issued during the period 1947-2003, only about half are still on the books today. About 30% have been revoked by a subsequent president and another 2% overturned by congressional legislation. Because of the censored nature of the data, this probably understates how many EO’s have been actually revoked.

Beyond the lack of durability, however, executive orders illustrate a more general weakness of relying on what presidential scholar Richard Neustadt describes as a president’s “command” authority: it indicates a failure to bargain effectively with Congress. Trump drove this point home in his interview, noting that, “It’s supposed to be you get along with Congress, and you cajole, and you go back and forth, and everybody gets in a room and we end up with deals. And there’s compromise on lots of other things, but you end up with deals. Here’s a guy just goes — he’s given up on the process and he just goes and signs executive orders on everything.” Without trying to apportion blame, or even to accept Trump’s characterization that Obama has “given up” on the legislative process, the plain fact is that the President and Congress have not engaged successfully in the process of bargaining that is at the heart of the legislative process.

There is a more fundamental risk in Obama’s approach, however, beyond the failure to secure a desired legislative outcome. It is that efforts to achieve goals unilaterally are likely to stiffen congressional resistance to future presidential efforts to secure preferred legislation in other areas. In his famous study of the presidency, Neustadt noted that when it comes to evaluating presidents, “Strategically, the question is not how he masters Congress in a peculiar instance, but what he does to boost his mastery in an particular instance, looking forward tomorrow from today.”  We have seen other instances, most notably in his efforts to expand legal protection to children who came to this country illegally, where Obama’s efforts to act unilaterally have embroiled him in legal controversy and perhaps stiffen congressional opposition to his objectives.

For all these reasons, unilateral executive action is a poor substitute for bargaining with Congress and is best understood not as a sign of an imperial presidency who can “make law with the stroke of a pen” but rather as evidence of a president’s inability to bargain successfully with the legislative branch. Speaking more generally about presidents’ efforts to achieve goals via “command” authority, Neustadt concludes that, “Not only are these ‘last’ resorts less than conclusive, but they are also costly. Even though order is assured of execution, drastic action rarely comes at bargain rates. It can be costly to the aims in whose defense it is employed. It can be costly, also, to objectives far afield.” One can understand Obama’s frustration with Congress’ unwillingness to enact more stringent gun control via universal background checks. It may be that in issuing this latest executive action, Obama will make the issue of gun control more salient to the public, thus increasing pressure on Congress to act legislatively. But I suspect it is more likely that this latest action will harden opposition in Congress to further gun control legislation and that any real progress on this front will have to wait until a new President and Congress take office. If so, Obama will not be the first president to confront the difficulty of trying to make policy unilaterally in a constitutional system of shared powers. Unfortunately, he is also not likely to be the last.

Bombing ISIS: A New Imperial Presidency?

“The Constitution,” the eminent political scientist Edward Corwin famously declared, “is an invitation to struggle for the privilege of directing American foreign policy.” I was reminded of Corwin’s assessment when reading Yale law professor Bruce Ackerman’s recent New York Times op ed piece, in which Ackerman castigates President Obama’s justification for his decision to  initiate military action designed to “degrade and destroy” the Islamic State (ISIS). For Ackerman, Obama’s willingness to authorize air strikes without congressional approval smacks of “imperial hubris”, and “marks a decisive break in the American constitutional tradition.”

It does nothing of the sort, of course. To be sure, Ackerman makes a compelling case that the Obama administration’s use of the 2001 Authorization for Use of Military Force (AUMF) as the basis for taking military action against ISIS (and more recently against the Khorasan terrorist group as well) stretches credulity. The 2001 AUMF, you will recall, is the joint resolution passed by Congress in the aftermath of the 2001 terrorist attacks that authorized “the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.” As Ackerman persuasively argues, “[I]t’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq…. Not only was ISIS created long after 2001, but Al Qaeda publicly disavowed it earlier this year. It is Al Qaeda’s competitor, not its affiliate.” Presumably Ackerman would also dismiss administration attempts to utilize the 2002 joint congressional resolution that authorized the president to “use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq” as an additional justification for bombing ISIS.

But Ackerman’s legal objections miss the point. The question is not whether a close textual reading of the 2001 or 2002 congressional resolutions support their use as the legal basis for airstrikes against ISIS – it is whether the Obama administration has the political support to make the case that they do. In short, the debate is over whether the public, as channeled through their elected representatives, supports Obama’s course of action – bombing ISIS – and not as Ackerman would have it, over Obama’s justification for his course of action. And this is exactly Corwin’s point. In a constitutional system in which foreign policy powers are shared, the relative effective influence exercised by the President and Congress in the foreign policy domain depends on how well each can enlist public support, as channeled through elected officials, for their preferred course of action. The Constitution, and subsequent statutes, only sets the parameters of this debate – it doesn’t determine the winner. This is why the Courts historically have refused to adjudicate conflicts between the two branches regarding the extent of the President’s war making powers, and why the War Powers resolution – beyond its notification requirements – has been of little help in resolving these disputes. Historically, Congress and presidents have differed over when, and whether, the War Powers resolution is applicable but neither side has so far been willing to precipitate a constitutional crisis by pushing their interpretation to the limit.

In determining who has the stronger case, then, regarding whether Obama can unilaterally authorize bombing ISIS, we would do well to spend less time parsing the wording of the Constitution and related texts, and focus instead on the politics of the matter. And politically, at this point, the evidence suggests that Obama’s interpretation will prevail – at least for now. This is because in the wake of the highly-publicized beheadings by ISIS of journalists, opinion polls show broad public support among Democrats, Republicans and Independents for targeted air strikes against ISIS in Iraq and Syria. Given prevailing public opinion, it is unlikely that many members of Congress who are facing midterm elections in November are going to want an immediate debate regarding Obama’s authority to conduct airstrikes. Indeed, most Republicans who object to Obama’s strategy do so not because they oppose air strikes, but because they believe air strikes alone are not likely to achieve Obama’s stated objectives. Yes, there is some background grumbling among legislators regarding Obama’s willingness to act alone, but that grumbling is likely to remain muted until the results of the midterms are known.

At that point, however, if Republicans regain control of the Senate in November, and pad their current House majority, I have little doubt that they will use those political gains as leverage in order to force Obama to seek congressional support for continued military action – particularly if air strikes alone have not achieved their objectives. However, current polling suggests that any post-midterm Republican efforts to push Obama to widen U.S. involvement, including introducing “boots on the ground” against ISIS – an action that, so far, Obama has vowed not to take – may lack public backing. This may set up an interesting public debate regarding how much military involvement the public is willing to support in order to achieve Obama’s stated military objective of defeating ISIS.  Again, that debate is likely to turn on the politics of the issues – not legal interpretations of the President’s war-making authority.

My broader point is that too often pundits, and some of my political science colleagues as well, view unilateral presidential action as evidence of presidential imperialism or an imbalance of constitutional and statutory powers, when in truth it reflects congressional acquiescence, or even tacit support, for the president’s actions. Typically Congress does not acquiesce because its members have been cowed, or lack the requisite political authority to block the President. Members acquiesce because they think the President has the better argument, politically speaking. Moreover, despite all the talk about his predecessor’s allegedly imperial conduct, the fact is that George W. Bush sought, and received, congressional authorization for both the wars he initiated in Iraq and in Afghanistan.

Rather than “a devastating setback for our constitutional order”, as Ackerman claims, Obama’s decision to move forward with military strikes while asking for Congressional support is in perfect keeping with our system of shared powers, and it reaffirms Corwin’s basic point. The Constitution is the supreme law of the land, but when it comes to foreign policy the interpretation of that law is ultimately determined not by a close parsing of the constitutional text, or related statute, but by the effort of elected representatives to muster public support for their preferred foreign policy objective. In that ongoing struggle, the President, as a single actor, has certain advantages, including the ability, as Hamilton noted long ago, to act with “secrecy and despatch”. But history shows that Congress, if it musters the political will, has more than enough powers to bring any president to heel. Whether it will do so in this case depends in large part on what legislators hear from voters come November.